Legal Theory Blog
All the theory that fits!
This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.
Sunday, November 30, 2003
Legal Theory Lexicon: Virtue Ethics
What is virtue ethics? Obviously, virtue ethics has something to do with virtue, which in this context is closely related in meaning to the English word "excellence," the Latin "virtu," and the Greek, "arete." Sometimes "virtue ethics" is also called "aretaic moral theory," using the adjective form of the Greek word for virtue.
In moral philosophy, the virtues are the human excellences. Here is the definition offered by the distinguished moral philosopher, Rosalind Hursthouse:
Modern Moral Philosophy Historically, virtue ethics finds its roots in ancient Greek philosophy, particularly in the work of Plato and Aristotle, but the contemporary revival of virtue ethics can, in a sense, be traced to G.E.M. Anscombe's article, Modern Moral Philosophy published in the journal Philosophy in 1958. Anscombe's famous article noted the well-known deficiencies and problems associated with utilitarianism and deontology and suggested that a return to Aristotle's moral philosophy might provide a fruitful alternative. This marks the beginning of what might be called the aretaic turn in moral philosophy--initiating both a return to Aristotle's theory of the virtues and the development new varieties of virtue theory.
The Virtues What are the virtues? One good way to answer this question is to examine Aristotle's account of human excellence. For Aristotle, the virtues are acquired dispositional qualities; they are potentialities or powers which are states of character or of mind. Aristotle characterizes the virtues as intellectual or moral, and his views can be sketched by examining these two categories.
The moral virtues are states of character concerned with choice; examples include courage, temperance and justice. Aristotle thought that virtues such as courage related to human emotion in a particular way. In the case of courage, there is a morally neutral human emotion--fear. The disposition to excessive fear (fear that is disproportionate to the situation) is the vice of timidity. The disposition to insufficient fear is the vice of recklessness. Courage is the disposition to feel fear that is proportionate to the actual threat or danger. Hence the virtue of mean is a mean between two opposed vices, timidity and recklessness. Moral virtues, says Aristotle, are acquired as a result of habit; one must act courageously in order to become courageous.
The intellectual virtues are practical and theoretical wisdom. Practical wisdom or phronesis is excellence in deliberation: the person of practical reason is able to choose good ends and the means to achieve those ends. Practical wisdom operates in realm of praxis: action in particular situations. Theoretical wisdom or sophia, on the other hand, operates in the realm of theoria; abstract thinking, science and theory. The intellectual virtues are initially developed by teaching and mature through experience.
A fully virtuous agent, then, would be someone who possesses the full complement of the moral and intellectual virtues. This may be rare, as most humans lack some of the virtues and possess others in an imperfect form.
Virtue Ethics and Human Good What are the implications of virtue ethics for human ends and actions? Here is a very simple (and simplified) answer. Virtue ethics counsels us to cultivate virtue--to acquire the human excellences insofar as that is possible. Virtuous agents will then aim at the right goals in life, because their intellectual and emotional makeup naturally points them towards a just and flourishing life. Thus, a fully virtuous human will characteristically act in the right way for the right reasons. And what about those who lack full virtue? Many humans, however, lack fully virtuous characters. What counsel does virtue ethics offer those who lack the full complement of human excellence? The answer to this question can be developed in at least two ways. First, we might ask ourselves, "How would a virtuous human act in these circumstances?" This is, of course, part of ordinary human deliberation. When faced with a difficult choice situation, sometimes we think of someone whose character we admire, and ask, "How would she (or he) deal with this?" Second, we might ask ourselves, "What do the virtues counsel in this situation?" That is, we can take our understanding of the human excellences, and ask questions like, "What action would be courageous?" or "What action would accord with the virtue of justice?"
Particularism and Phronesis Contemporary virtue ethics is distinctive in part, because it denies something that both deontology and utilitarianism seem to affirm--that there is a decision procedure for ethics. Utilitarianism claims that there is a very simple rule (which if correctly applied) yields the morally correct action for each situation: act so as to produce the best consequences. Deontology has a similar claim: to do the right thing, simply consult the moral rules, and perform that action which is required or if no action is required, choose from among those that are permissible. Virtue ethics characteristically denies that there is any mechanical rule that generates the morally correct action. Why not? One answer to that question lies in Aristotle's idea of the phronimos, the person who possesses the virtue of practical wisdom. The phronimos has the ability to respond to the complexities of particular situations, to see what is morally salient, and to choose an action that will work given the circumstances.
Behind the virtue of phronesis or practical wisdom is an assumption about the complexity of life. Virtue ethics characteristically argues that life is more complicated than our theories and rules. It would be impossible, the virtue ethicist might argue, to write a code of rules for moral conduct. No matter how complicated the rules, situations would inevitably arise that were not covered or in which the rules produced a perverse and unintended result. Acting morally requires more than a knowledge of moral principles; it requires a sensitivity to particular situations. One way of putting this is use the metaphor of moral vision, the ability to size up a real-world choice situation, perceiving the morally relevant circumstances.
Virtue Politics and Virtue Jurisprudence What are the implications of virtue ethics for the questions that legal theorists ask? One starting point for an answer might be the development of "virtue politics," i.e. a political theory that builds on the foundations of virtue ethics. A virtue politics might begin with the idea that the goal of the state should be the establishment of the conditions for the development of human excellence. Thus, the aim of the legislator might be described as the establishment of a political and legal framework within which individual citizens can realize their full potential for human excellence. A virtue politics might also consider the implications of virtue theory for the design of political institutions. For example, institutions might both seek to counteract the fact that both citizens and office holders will frequently be less than fully virtuous and also to establish conditions under which legislators, executives, and judges are selected at least in part for their possession of the virtues.
What about the implications of virtue ethics for legal theory? We might call an aretaic approach to legal theory "virtue jurisprudence." Among the topics that aretaic legal theory might explore is a virtue-centered theory of judging, which describes the particular excellences required by judges. A virtue-centered theory of judging offers an account of the characteristics or excellences that make for a good judge. These include: (1) judicial temperance, (2) judicial courage, (3) judicial temperament, (4) judicial intelligence, (5) judicial wisdom, and (6) justice. We might say that a virtuous judge is a judge who fully possesses the judicial virtues. Although every theory of judging can incorporate some account of judicial virtue, a virtue-centered theory of judging makes the distinctive claim that the judicial virtues are central, i.e. that they have basic explanatory and normative significance.
In particular, a virtue-centered theory of judging would contend that a correct legal decision is a decision that would characteristically be made by a virtuous judge in the circumstances relevant to the decision. Thus, the central normative thesis of a virtue-centered theory of judging is that judges ought to be virtuous and to make virtuous decisions. Judges who lack the virtues should aim to make lawful or legally correct decisions, although they may not be able to do this reliably given that they lack the virtues. Judges who lack the judicial virtues ought to develop them. Judges ought to be selected on the basis of their possession of (or potential for the acquisition of) the judicial virtues.
One of the judicial virtues is "judicial wisdom," the judicial form of the phronesis. If the world is too complex for a complete code of moral rules, then what about the law. Aristotle suggested that justice according to law would inevitably fall short in at least some particular cases, because the legislature must speak in relatively general and abstract language which sometimes will produce unintended consequences that are contrary to the purposes of the law. Here is Aristotle's discussion from Chapter 10 of Book V of the Nicomochean Ethics:
Conclusion While utilitarianism and deontology are well-known to legal theory, virtue ethics is only beginning to have an influence on contemporary jurisprudence. Most contemporary American legal theorists were trained before virtue ethics reached its full flower in the 1980s and 1990s, and many law professors who have broad theoretical interests are only vaguely aware of the substantial impact that virtue ethics has had on contemporary moral philosophy. Nonetheless, a theoretically inclined law student can bring virtue ethics to bear on a variety of legal problems. One good example concerns the use of the "reasonable person" standard in tort law. It is interesting that tort law frames the standard of care in negligence cases with reference to the concept of an agent (the reasonable person)--and does not use the "reasonable action" or "reasonable consequences" as the fundamental idea.
If thinking about the reasonable person in tort law is a good place to begin, virtue ethics can be applied to a variety of legal problems. Here is one suggestion. Sometimes, you will find that a strict application of the rules leads to a result that is manifestly unfair and unintended. Ask yourself: "Is this a case where a virtuous judge might choose to depart from the rule on equitable grounds?" And here is another suggestion: Whenever you find yourself dissatisfied with consequentialist or deontological approaches to the moral problems that law addresses, ask yourself, "What would virtue ethics say here?" What character traits or virtues are relevant to this problem? When you start to list the relevant virtues, you will be on your way to a virtue-theoretic analysis of the legal problem!
Crisp, Roger (ed.), 1996, How Should One Live? Oxford: Clarendon Press.
Crisp, Roger and Michael Slote (eds.), 1997, Virtue Ethics, Oxford: Oxford University Press.
Foot, Philippa, 1978, Virtues and Vices, Oxford: Blackwell.
Hursthouse, Rosalind, 1999, On Virtue Ethics, Oxford: Oxford University Press.
Statman, D. (ed.), 1997, Virtue Ethics, Edinburgh: Edinburgh University Press.
Ethics Updates Page on Aristotle and Virtue Ethics.
Internet Encyclopedia of Philosophy Entry on Virtue Theory
Wikipedia Entry on Virtue Ethics.
Wikipedia Entry on Virtue Jurisprudence.
Online Guide to Ethics and Moral Philosophy: Virtue Ethics
Legal Theory Calendar
At the University of Chicago's Law and Philosophy Workshop, Professor Ulrich Preuss, Freie Universität, Berlin and Visiting Professor, University of Chicago Law School, will present work on comparative constitutionalism.
At George Mason's Philosophy, Politics and Economics series, Peter Grajzl & Peter Murrell (Economics/IRIS, University of Maryland Professions) present Politicans and Institutional Reforms.
At Northwestern's Colloquium on the Legal and Constitutional History of the United States, Tomiko Nagin-Brown (Washington University, St. Louis, School of Law/History) presents Middle class African-Americans' views of desegregation in the era of Brown v. Board of Education.
At the University Chicago's Law and Economics Series, Alan Schwartz (Yale Law School) is presenting.
At the University of Texas Hans Baade presents The Post-Civil War Texas Supreme Court.
At Oxford's IP Seminar, Tina Piper presents The Unpatentability of Medical Diagnostic Methods: A Promise and its Perils.
At Oxford's Private and Commercial Law Discussion Group, Donal Nolan presents The Distinctiveness of Rylands v Fletcher.
At Oxford's Ockham Society, Vladislav Vexler (Oxford) presents Why Isiah Berlin Failed to Ground Liberalism.
At Notre Dame Law School, today through December 5, 2003, a symposium entitled The Changing Laws of War: Do We Need a New Legal Regime After 9/11?
At Northwestern's Law and Economics series, Paul Mahoney (University of Virginia School of Law) presents The Value of Judicial Independence: Evidence from 18th Century England.
At Oxford's CENTRE FOR CRIMINOLOGICAL RESEARCH Seminar Series, Betsy Stanko presents Between the Home Office, PSAs and a real place: a critical reflection on government targets and doing criminal justice.
At Tulane's Center for Ethics and Public Affairs, Thomas Pogge will be speaking.
At NYU's Colloquium in Legal, Political and Social Philosophy, J.H.H. Weiler (NYU School of Law) presents A Constitution for Europe? Some Hard Choices.
At Yale's Legal Theory Workshop, Christine Jolls (Harvard Law) presents Debiasing Through Law.
At the Princeton Political Philosophy Colloquium, Iris Marion Young will present Responsibility and Structural Injustice.
At Florida State University, Adrienne Davis (University of North Carolina) presents Re-thinking Slavery.
At the University of Michigan's Law and Economics series, Richard McAdams is presenting.
At Boston University, Tamar Frankel is presenting today.
At the University of Hertfordshire Centre for Normativity and Narrative, Richard Norman (Kent) presents two lectures, Aesthetic Form and the Meaning of Life & The Ethics of War: War and Human Rights.
At MIT's philosophy series, Jason Stanley (University of Michigan) presents Context, Interest-Relativity, and Knowledge.
At Oxford's Centre for Socio-Legal Studies, a conference on Islamic Law and Human Rights: An Ethnographic Approach with Fariba Adelkhah, John Bowen, Fikret Karcic, John Kelsay, Werner Menski, Ziba Mir Husseini, Christian Moe, Martha Mundy, Lawrence Rosen, and Mohammad Talib.
At the University of Buffalo, Ernesto Laclau presents Empty Signifiers and the Logic of Representation with comments by Guyora Binder & Betty Mensch.
At the University of Texas, Mark Weiner (Rutgers-Newark) presents The Multiple Integrations of the Civil Rights Movement.
At the Society for Applied Philosophy in London, R. A. Duff (Stirling) & Penny Darbyshire (Kingston University) discuss The Future of the Right to Trial by Jury, with Thom Brooks (Sheffield) as Chair.
At the University of North Carolina's philosophy series, Samuel Scheffler (Winston Distinguished Visitor) presents Doing and Allowing.
At the University of Bristol's philophy series, Jo Wolff (UCL) presents What is Disadvantage and What Should be Done About it?
At the University of London's Philosophy Programme, there is a one-day conference, Aristotle on Potentiality and Actuality.
Saturday, November 29, 2003
Michael Smith on Consequentialism Michael Rappaport and I had a recent exchange on the demandingness objection to utilitarianism (Solum-Rappaport-Solum). So I was in the mood for Consequentialism and the Nearest and Dearest Objection--a paper recently uploaded by Michael Smith of the Australian National University's prestigious Research School of Social Sciences. Here is the hypo that starts the paper:
Parfit, Derek 1984: Reasons and Persons (Oxford: Oxford University Press).
Bainbridge on Regulation By Litigation Read this post.
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Moral Combat by Heidi Hurd:
Download of the Week This week the Download of the Week is Matthew Adler's paper Fear Assessment: Cost-Benefit Analysis and the Pricing of Fear and Anxiety. Adler describes the paper in the abstract:
Friday, November 28, 2003
Cohen on Who Can Blame the Terrorists at Cambridge At the Cambridge Forum for Legal & Political Philosophy, G.A. Cohen (All Souls College, Oxford) presents Casting the First Stone: Who Can and Who Can't Blame the Terrorists.
Saul on Torturing Terrorists at Oxford At Oxford's Human Rights Discussion Group, Ben Saul presents Torturing Terrorists after September 11: Dershowitz` Torture Warrant.
Bernitz on European Competition Law Convergence at Oxford At Oxford's Institute of European and Comparative Law Seminar Series, Ulf Bernitz presents Convergence of European and National Competition Law: How Far Will it Go?.
Papineau on Genes and Culture at Bristol At the University of Bristol's philosophy series, David Papineau (King's College, London) presents Genes and Culture.
Conference Announcement: The Laws of War at Notre Dame
Bagley versus Nard Margo Bagley (Emory University - School of Law) has posted Still Patently Unconstitutional: A Reply to Professor Nard (Minnesota Law Review, Vol. 88, p. 238, 2003). Here is the abstract:
Preece on Common Law & National Sovereignty Alun A. Preece (University of Queensland) has posted The Common Law and National Sovereignty on SSRN. Here is the abstract:
Baker on Price Discrimination Jonathan B. Baker (American University, Washington College of Law) has posted Competitive Price Discrimination: The Exercise of Market Power Without Anticompetitive Effects (Comment on Klein and Wiley) (Antitrust Law Journal, Vol. 70, No. 3, pp. 643-54, 2003, American Bar Association) on SSRN. Here is the abstract:
Ayotte & Skeel on Venue Choice in Bankruptcy Kenneth Ayotte and David A. Skeel, Jr. Jr. (Columbia Business School and University of Pennsylvania Law School) have posted Why Do Distressed Companies Choose Delaware? An Empirical Analysis of Venue Choice in Bankruptcy to SSRN. Here is the abstract:
Alward on Authorial Speech Acts Peter Alward has uploaded Attitudes Towards Fiction - Chapter 1: Authorial Speech Acts. Here is an excerpt:
Thursday, November 27, 2003
Thanks to the Volokh Conspirators and the Crooked Timberites for many hours of interesting and provacative reading.
Thanks to Rick Hasen, whose Election Law Blog is a wonder.
Thanks to Jack Balkin. Nothing has been more rewarding than responding to the intelligent and careful work that Jack does on Balkinization.
Thanks to Brett Marston, from whose Marstonalia, I have learned much.
Thanks to my USD colleagues, Gail Heriot, Sai Prakash, Mike Rappaport, Maimon Schwarzschild, Tom Smith and Chris Wonnell for their fabulous new blog, The Right Coast.
Thanks to Chris Bertram, Greg Goelzhauser, and Nate Oman--your support in the early days of Legal Theory Blog meant more than you can know.
Thanks to Jane Galt and Glenn Reynolds for introducing many new readers to LTB.
And most of all, thanks to you, for reading!
Wishing all in the blogosphere, a joyous Thanksgiving,
Lipton on Database Property Jacqueline D. Lipton (Case Western Reserve University - School of Law) uploads Balancing Private Rights and Public Policies: Reconceptualizing Property in Databases (Berkeley Technology Law Journal, Vol. 18, pp. 773-852, Summer 2003) to SSRN. Here is the abstract:
Is there really a workshop at Northwestern today? Northwestern's website says that Ronen Avraham is presenting Liability Rules and Modular Liability Rules: Another Ex-Ante View of the Cathedral. But surely not!
Fehige on Desires at ANU At ANU's RSSS, Christoph Fehige (University of Konstanz) presents Desires as Affects.
The UN and National Building at ANU At ANU's faculty of law, there is a conference entitled The United Nations and State Building.
Wednesday, November 26, 2003
Litman on Sharing and Stealing Jessica Litman (Wayne State University Law School) has posted Sharing and Stealing on SSRN. (For an updated version of the working paper, follow this link.) Here is the abstract:
And here are some references:
More from Weatherson on Cloning Brian Weatherson has put up a series of posts on cloning over at Crooked Timber, with many fine comments added by readers. His latest two posts can be found here and here.
Gardner & Macklem on Provocation John Gardner & Timothy Macklem have uploaded No Provocation without Responsibility: a Reply to MacKay and Mitchell. For submission to the Criminal Law Review. Here is a taste:
At the centre of our argument was what we regarded as an elemental contrast between excuses and denials of responsibility. To offer an excuse, we said, is to attempt to provide a decent rational explanation for what one did. To deny responsibility, by contrast, is to assert that (because at the time one was not a sufficiently rational being) no rational explanation for what one did is called for. Defences in these two classes, we argued, are not only different but incompatible. To make an excuse is not only not to deny one’s responsibility; it is positively to assert one’s responsibility. To deny one’s responsibility is not only not to make an excuse; it is to undermine any excuse one might have made. That is because one cannot claim to live up to rationality’s standards while also claiming that one should not be judged by rationality’s standards.
Barry on Utilitarianism and Human Rights at UCL At University College, London, today, Brian Barry (Columbia) presents Utilitarianism and Human Rights?
Atik on Nafta & Legitimacy Jeffery Atik (Loyola Marymount University) has uploaded Repenser NAFTA Chapter 11: A Catalogue of Legitimacy Critiques (Asper Review of International Business and Trade Law, Vol. 3, 2004). Here is the abstract:
Keohane on Rational Choice & International Law Robert Keohane (Duke University - Department of Political Science) has posted Rational Choice and International Law (Journal of Legal Studies, Vol. 31, No. 1, January 2002) on SSRN. Here is the abstract:
Infanti on the IRC as a Sodomy Statute Anthony C. Infanti (University of Pittsburgh - School of Law) has uploaded The Internal Revenue Code as Sodomy Statute (Santa Clara Law Review, Vol. 44) to SSRN. Here is the abstract:
Tuesday, November 25, 2003
Posner on Databases & Copyright Richard Posner has written a typically lucid opinion in ASSESSMENT TECHNOLOGIES OF WI, LLC. v. WIREDATA, INC. The case concerns a real-estate database constructed from public domain records subject to an open records statute. Posner observes that the plaintiff could claim a copyright in the arrangement of the data (the data elements & the arrangement of the elements into tables), but not underlying raw data. Link courtesy of the always amazing Howard Bashman.
Bertram on Rousseau Chris Bertram (Crooked Timber) has a marvelous book on Rousseau that is now available from Amazon.com: Rousseau and the Social Contract. I just bought my copy! Perhaps the reader's of Legal Theory Blog can boost Chris's sales rank! Buy it while its hot!
Fanto on Whistleblowing & Public Directors James A. Fanto (Brooklyn Law School) uploads Whistleblowing and the Public Director: Countering Corporate Inner Circles to SSRN. Here is the abstract:
Trosow on Copyright for Subsidized Speech Samuel E Trosow (University of Western Ontario - Faculty of Law / Faculty of Information & Media Studies) has posted Copyright Protection for Federally Funded Research: Necessary Incentive or Double Subsidy? on SSRN. Here is the abstract:
Posner Speaks Another Rice Grad guest blogs Richard Posner's talk at George Mason on Bush v. Gore over at Southern Appeal.
Ides on Congress's Power to Regulate Abortion Under the Commerce Clause Allan Ides (Loyola Marymount University) has uploaded The Partial-Birth Abortion Ban Act of 2003 and the Commerce Clause to SSRN. Here is the abstract:
Bainbridge on Eisenberg I would imagine that most readers of Legal Theory Blog will want to read Stephen M. Bainbridge's (University of California, Los Angeles - School of Law) Social Propositions and Common Law Adjudication, which is just up on SSRN. Here is the abstract:
Driver Reviews Arply Julia Driver has a Review of Nomy Arpaly's Unprincipled Virtue on Notre Dame Philosophical Reviews. Here is an excerpt:
Gregory on Stalinism at George Mason At George Mason's Philosophy, Politics, and Economics series, Paul Gregory (Economics, University of Houston) presents The Political Economy of Stalinism.
Williams on the Natural/Positivist Nexus at OJDG At Oxford's Jurisprudence Discussion Group, Melanie Williams, presents Then and Now: The Natural/Positivist Nexus at War - Auden’s “September 1, 1939”.
Duffield on Patent Harmonization at Oxford At Oxford's IP Seminar, Graham Dutfield presents Harmonising Patent Law? A Lesson from the 19th Century Dyestuff Industry.
Boos on H.L.A. Hart & David Hume, Is/Ought Eric J. Boos (Sokoine University - Law) posts The Misapplication of the 'Is-Ought' Distinction and the Role of Justice in Hart's Legal Theory on SSRN. Here is the abstract:
Adler on Fear Assessment or "The Only Cost We Have to Weigh is Fear Itself" Matthew D. Adler (University of Pennsylvania Law School) has uploaded Fear Assessment: Cost-Benefit Analysis and the Pricing of Fear and Anxiety to SSRN. Here is the abstract:
Mattiacci on Kaplow & Shavell Giuseppe Dari Mattiacci (Utrecht School of Economics) has posted Goedel, Kaplow, Shavell: Consistency and Completeness in Social Decisionmaking on SSRN. Here is the abstract:
Shavell on Contracts Steven Shavell (Harvard Law School) has posted On the Writing and the Interpretation of Contracts on SSRN. ($5.00 fee.) Here is the abstract:
Monday, November 24, 2003
More on the Demandingness Objection to Utilitarianism Here, from Michael Rappaport of The Right Coast. The gist of the demandingness objection is captured by the question: doesn't utilitarianism demand that we all work for Oxfam? One potential way to answer the objection relies on R.M. Hare's distinction between utilitarianism as an ideal theory of morality, and the rules of thumb that would produce the best consequences if internalized as social norms. Rappaport has some interesting things to say about a Harean strategy. After you read Rappaport's very thoughtful post, consider this argument from Stanford University graduate student Daniel Lafave:
Act-utilitarianism is an extremely demanding theory, since it requires you to be entirely impartial between your own interests, the interests of those you love, and theinterests of all. The usual example offered is famine relief. By giving up all your time,money and energy to famine relief, you will save many lives and prevent much suf-fering. Utilitarians often claim at this point that there are limits to human capabilities,and utilitarianism requires us only to do what we can. But the sense of ‘can’ hereis quite obscure, since in any ordinary sense I can give up my job and spend my life campaigning for Oxfam.
The demandingness objection seems particularly serious when taken in the context of widespread noncompliance with the demands of act-utilitarian morality. Most people do little or nothing for the developing world, and this is why the moral demands on me are so great. An argument such as this has been used to advocate rule-utilitarianism, according to which the right action is that which is in accord with thatset of rules which, if generally or universally accepted, would maximize utility.
Update :And more from Ciceronian Review, here.
Additional update: And for more from Charles Stewart, surf here.
Weekend Update On Saturday, the Dowload of the Week was Gerald Postema's magisterial two-part paper on the common law, and the Legal Theory Bookworm recommended Robert Alexy's latest. Sunday, the topic for the Legal Theory Lexicon was the theory of the second best (and the distinction between ideal and nonideal theory). And also on Sunday, you will find the Legal Theory Calendar, with workshops, conferences, and other events of note for this week. Finally, the last post from the weekend was a longish response to Brian Anderson's Opinion Journal op/ed on Senator Schumer and judicial selection.
Froomkin on National ID Cards at FSU At Florida State, Michael Froomkin (University of Miami) presents The Uneasy Case for National ID Cards as a Means to Enhance Privacy. I always learn from Froomkin's work. This should be excellent! P.S. FSU appears to have password protected the paper, so I have substituted a link to a version from Froomkin's website--this may not be the same draft as circulated to the FSU faculty.
Jiang on Defined Contribution Plans at Columbia At Columbia's law and economics series, Professor Wei Jiang (Columbia University Graduate School of Business) presents Defined Contribution Pension Plans: Determinants of Participation and Contributions Rates (authored with Business School colleagues Professors Gur Huberman and Sheena S. Iyengar).
Schmidtz on Equality at Arizona At Tulane's Center for Ethics and Public Affairs, David Schmidtz (University of Arizona) presents Equality. Largish topic?
Griffin at Oxford At Oxford's Moral Philosophy Seminar, James Griffin (ANU) speaks today. Topic anyone?
Margulies on Judging and Terrorism Peter Margulies (Roger Williams University School of Law) has posted Judging Terror in the 'Zone of Twilight': Exigency, Accountability, and Procedure After September 11 on SSRN. Here is the abstract:
Wuerth on Madison's Forgotten War Ingrid B. Wuerth (University of Cincinnati - College of Law) posts The President's Power to Detain 'Enemy Combatants': Modern Lessons From Mr. Madison's Forgotten War (Northwestern University Law Review, Vol. 98, 2004) on SSRN. Here is the abstract:
Hay on Stings Bruce L. Hay (Harvard Law School) has posted Sting Operations, Undercover Agents and Entrapment on SSRN. Here is the abstract:
O'Connor on Corporate Governance and Human Capital Marleen O'Connor (Stetson University College of Law) has uploaded American Corporate Governance and Resilient Families: Investing in Children's Human Capital in Turbulent Times to SSRN. Here is the abstract:
Viscusi on Tort Reform and Insurance Markets W. Kip Viscusi (Harvard Law School) has posted Tort Reform and Insurance Markets on SSRN. Here is the abstract:
Sunday, November 23, 2003
Senator Schumer and the Criteria for Judicial Selection
A Simple Model of Judicial Selection And, in fact, there are even more complicated possibilities, because it is possible that Democrats are considering both political ideology and judicial philosophy in deciding which candidates should be subject to a filibuster veto. It's worthwhile thinking a bit more abstractly about this. So let's consider a very simply model where judges are rated by judicial selectors (Presidents and Senators) on two dimensions. Here they are:
--Judicial Philosophy. Let's assume that selectors rate candidates on the basis of their judicial philsophy on a continuous real line that runs from formalist to realist. Let us assume that a perfectly formalist candidates would decide cases entirely on the basis of the legal materials, the text, structure, history, and precedent, without any conscious reliance on poltical ideology. Give such a candidate a score of zero. Let us assume that a perfectly realist candidate would decide cases enitrely on the basis of political ideology, giving no weight to legal materials at all. Give such a candidate a score of one.
So each judicial candidate will have a position in this two dimensional space. In the upper left, will be left-realist judges, who decide cases almost solely on the basis of their left ideology. In the upper right are the right-realist judges, who override the law and decide based on right-wing ideology. At the bottom of the chart are the formalist judges, who decide on the basis of texts, structure, history, and precedent. Let us assume that even a judge who is perfectly formalist in intention will be unable to fully compensate for unconcious biases introduced by ideology. Thus, although right formalists and left formalists may agree most of the time, there will be some issues on which they will decide differently because they are unable to completely compensate for their ideological biases, preconceptions, and assumptions.
How Would Selectors Rate Candidates? Given our simple two dimensional model, how would judicial selectors (Presidents and Senators) rate candidates? This is a complex question, because selectors themselves may vary in both political ideology and judicial philosophy. For the purposes of model building, let's assume a simplified picture. Let's assume that to make an appointment, you need to get the agreement of two players: a right-wing President and a unitary left-wing Senate. (This obviously oversimplifies, because in current circumstances the Senate has a right-wing majority and a left-wing minority with veto power--unless the filibuster rule is changed.) How would they evaluate candidates? Consider each in turn:
--The Senate. Now assume you are the Senate (or to be more realistic, the Senate minority with a filibuster-enabled veto). You will be willing to accept realist judges only if they are on the extreme left of the ideology line. As judges become more formalist, you are willing to accept progressively less left-wing ideologies. That is, the line the defines the set of candidates that are acceptable to the Senate slopes downward and to right.
___________________Acceptability Frontiers for President & Senate
__Realist1| ________13|_____*______________________________________________________________________# ________14| ________15| ________16|_______*__________________________________________________________________# ________17| ________18| ________19|__________*____________________________________________________________# ________20| ________21| ________22|_____________*______________________________________________________# ________23| ________24| ________25|_________________*______________________________________________# ________26| ________27| ________28|_____________________*______________________________________# ________29| ________30| ________31|__________________________*______________________________# ________32| ________33| ________34|_______________________________*____________________# ________35| ________36| ________37|_______________________________________*____# ________38| ________39| ________40|__________________________________#____________* ________41| ________42| ________43|_______________________#_________________________________* Formalist_________________________________________________________________________________ __________Left_______________________________________________________________________Right __________12345678901234567890123456789012345678901234567890123456789012345678901234567890.
Who Will Be Selected From Within the Confirmation Zone? Given our model, we would expect the President to nominate from inside the confirmation zone. Let me translate. Given our model, we would expect a right wing President to nominate candidates whose political ideology is relatively moderate and who are relatively formalist. Of course, there is a possibility that the Senate (or Senate minority with a filibuster veto) would reject candidates inside the confirmation zone. Why, because both the President and Senate will preferences inside the zone. To simplify, let's assume that on any given horizontal line (i.e. for any given level of formalism), the President prefers those to the right and the Senate prefers those to the left. Consider the following example. We have two candidates C1 and C2, who are identical with respect to their judicial philosophy score, but different with respect to their political ideology score--C1 is to the left of C2. This situation can be represented in the following diagram, which cuts off the acceptability curves above the confirmation zone: ________37|_______________________________________*____# ________38| ________39| ________40|__________________________________#____________* ________41| ________42|________________________________C1_______________C2 ________43|_______________________#_________________________________* Formalist_________________________________________________________________________________ __________Left_______________________________________________________________________Right __________12345678901234567890123456789012345678901234567890123456789012345678901234567890.
Back to the Real World So how does all this relate to Brian Anderson's comments about Senator Schumer? Anderson's suggestion is that there is an asymmetry between the way Republicans and Democrats view judicial philosphy. Essentially, Anderson suggests that Democrats want left-realist judges and Republicans want right-formalist judges. But this is a partisan reading of recent events. Although Republicans favor formalism on some issues, e.g. the unenumerate liberty or privacy rights that undergird Roe v. Wade and Lawrence v. Texas, Republicans may prefer less formalist approaches to other issues, e.g. the constitutional sovereign immunity jurisprudence that seems to go far beyond the text of the 11th Amendment. Nonetheless, there is something to Anderson's point, reflected in the fact that in the legal academy and on the bench, originalists have tended to be conservative and nonoriginalists liberal.
As frequent readers of this blog know, I have been arguing for some time that the best way out of the current downward spiral of politicization that affects both the bench and the judicial selection process is for both sides to take a long-run view of the benefits of the rule of law and the costs of politicization. But Anderson's characterization of the problem is correct, then that solution is unavailable. Why? Because Anderson's argument seems to be that restoration of the rule of law is not in the interests of the left. I disagree, in part because I believe that a doctrine strong stare decisis is part of the best formalist theory of judging, but this post has already gone on too long, and that is a topic for another day.
And for more on Anderson, check out this post by Brett Marston.
Update: And this post from C.E. Petit on Scrivener's Error.